Self-Help Evictions
Active property management is required to protect the landlord’s business investment. When a tenant commits a material default of lease terms, a landlord should take prompt action to cure the default.
Lease violations could be a breach of the tenant’s statutory duties regarding waste, nuisance, health or safety, or a breach of the lease agreement terms and conditions. The most common tenant defaults are non-payment of rent, chronic late payment of rent, or repeated violations of lease terms with no attempt to cure. Tenant defaults can require eviction action. As a business protection, eviction may be the best course of action to cure the tenant’s default and restore landlord to good condition.
Having made the decision to initiate an eviction action, most landlords want to move quickly to remove the tenant from the rental premises and protect themselves from further loss and damage. State landlord-tenant statutes and some municipalities govern the eviction process.
To legally re-gain possession of the rental premises, a landlord must use the court system to conduct an eviction. Time is of the essence in an eviction action. However, the court process may take some time to complete. While the action is pending per applicable statute or law, the landlord may continue to incur additional expenses, lost rents, and potentially more property damage due to the tenant’s default. The landlord is in effect out of business for that rental unit/property until due process of law is complete. While landlords are anxious to get back in business, landlords must comply with all legal requirements.
Some landlords may try to take the law into their own hands and attempt to move the process along more quickly by using other means to remove the tenant from the property. The so-called self-help eviction is illegal. A self-help eviction should never be considered by a landlord. Any action taken by a landlord outside of the legal system to force or intimidate a tenant to remove him or her from the rental premises is against the law.
In almost all states landlords by statute may not resort to self-help evictions. While the tenant’s default may be egregious behaviors, a landlord cannot use the tenant’s conduct to excuse the landlord’s behavior when taking matters into his own hands. There is no valid landlord defense of a self-help eviction. By trying to circumvent the law, a landlord opens himself up to legal actions for wrongful eviction and other tenant claims for trespass, assault, battery, slander, libel, and intentional infliction of emotional distress. The costs of self-help eviction can far exceed the costs of a legal eviction through the courts.
Self-Help Eviction Tactics
A self-help eviction could be a direct or indirect action by the landlord to force or scare the tenant into moving. The most commonly used tactics by landlords in a self-help eviction are:
- Locking out a tenant by changing all the locks on the rental premises
- Shutting off the essential utilities such as electric, water, and gas services
While such tactics are obviously illegal, there are other less direct tactics or subtle actions that are also illegal. It is illegal for a landlord to:
- Remove the tenant’s personal possessions from the rental unit
- Dispose of the tenant’s personal possessions by any method ( trash, sale, or seizure)
- Refuse to allow the tenant access to the tenant’s stored possessions
- Threaten the tenant with violence
- Post threatening notices on the tenant’s door
- Refuse to make repairs as required for habitability
- Decrease or deny tenant access to services or amenities
- Spread rumors about the tenant
- Behave in a harassing manner toward the tenant
- Attempt to physically remove the tenant from the rental premises
Any activity that is or may be perceived as illegal, threatening, humiliating, abusive or invasive of a tenant’s rights or a tenant’s privacy could be used to file a lawsuit against the landlord. Accordingly, a landlord should carefully consider every action taken in regard to handling the tenant’s default. The landlord should view the actions from a perspective of how those actions might be perceived by a judge. A court could rule that illegal actions by the landlord constitute landlord harassment and find for the tenant in a legal proceeding.
Consequences and Penalties of Self-Help Evictions
The consequences of a landlord illegally conducting a self-help eviction vary from state to state. In some states self-help evictions are not allowed but damages are determined by the court. In other states, a tenant may sue the landlord for any amount. Actual damages including tenant compensation for lost or stolen personal property, temporary housing and essential services, punitive damages, civil penalties, or money damages as specified by statute may be awarded to the tenant. In one state a landlord who engages in self-help evictions is deemed a disorderly person, a criminal offense that subjects the landlord to a specified jail term. Statutes also provide for the tenant’s court costs and attorney fees and may give the tenant the right to stay in the property. If the tenant elects to terminate the lease, the landlord must return the entire security deposit.
A Lawful Eviction Process
A landlord has the burden of proof to show that there is a material breach of the lease agreement or other circumstance that should be remedied by termination of the tenancy. The landlord must show not only a breach that permits termination of the lease, but also that the landlord complied with all statutory procedures, such as the Complaint and Summons and service of process.
The tenant has the right to due process and the court may extend a bias towards the tenant who presumably could be at the mercy of the landlord. The landlord’s prior conduct towards the tenant and the landlord’s entire relationship with the tenant will also come into scrutiny if the tenant defends against the lawsuit. Even with fully documented proof, a landlord is not guaranteed to win an eviction lawsuit. A landlord should take nothing for granted which is all the more reason for the landlord to carefully comply with legal requirements.
State statutes are specific in their procedures to terminate tenancy and conduct an eviction lawsuit. Failure to follow proper procedures can result in a dismissal or even the loss of the eviction lawsuit, no matter how serious or outlandish the tenant’s violation.
Termination of tenancy is the first step in the eviction process. The type of termination notice and the required notice period are determined by state statute and the type of default. Generally there are three types of termination notices.
Pay Rent or Quit
The most common reason for an eviction action is non-payment of rent. In most states, if the tenant is late with rent, the landlord must give the tenant a written notice of the number of days (usually 3–5 days) in which the tenant has to pay the rent or move (quit). If the tenant does not pay rent or move-out, the landlord can file for eviction. In some states there is a legal late period before the landlord can serve the notice to pay or quit.
Cure or Quit
If the tenant violates a condition of his lease agreement, a landlord can notice the tenant with a specified amount of time to cure the lease violation, cease the lease violation, or move. In some states a landlord can file for eviction as soon as the cure period expires. In other states the tenant may be allowed additional time to vacate. In many states, a landlord can terminate a tenancy with an Unconditional Quit notice.
Unconditional Quit
Unconditional Quit notices allow landlords to terminate a tenancy immediately or within a short period of time for repeated violations of lease terms and conditions, acts of damage, nuisance, or illegal activity. The tenant is ordered to vacate the premises with no chance to cure the violation.
However, when the noticed termination deadline expires, the tenant is not automatically evicted. Further action will be needed to legally re-gain possession of the rental premises. The landlord must use the court system to conduct an eviction. In almost every state a landlord must file and win an eviction lawsuit before local law enforcement officers can physically evict a tenant who refuses to leave after receiving a termination notice.
Filing for Eviction
The eviction lawsuit process begins with the landlord’s filing of a legal notice, the Complaint, wherein the landlord states the cause of action for the eviction, that is, the facts that justify an eviction. It is a formal request for a judgment for possession of the rental premises and a money judgment for unpaid rent, damages, and applicable court costs and attorney fees.
The Summons is a legal notice to the tenant from the court of jurisdiction that the landlord has filed a Complaint against the tenant. The Summons commands the tenant to appear at court.
The tenant may file a response, the Answer, to the landlord’s Complaint, on or before the date shown on the Summons. In the Answer, the tenant will state his written defense to the Complaint. The tenant’s Answer may be either a denial of the allegations, or a claim of affirmative defense, a valid legal reason that provides an explanation for the tenant’s actions and invalidates the eviction action.
If the Answer is not filed with the court in a timely manner, or the tenant does not file an Answer (does nothing), the tenant loses all defenses. The court will enter a default judgment against the tenant in favor of the landlord.
The default judgment allows the landlord to obtain a Writ of Possession. The Writ of Possession is the legal document that restores possession of the rental property to the landlord. If petitioned by the landlord and as applicable, a money judgment for unpaid rent, damages, and court costs may be awarded to the landlord.
The landlord is responsible to deliver the Writ and a set of instructions to the officer of the court who will carry out the actual eviction. The tenant will be served with an eviction notice to vacate the premises within a specified time period. If the tenant does not comply, the Writ authorizes an officer of the court to physically remove the tenant from the rental premises.
All of the tenant’s possessions must be removed from rental property. In many states, it is customary to deposit them on the curb lawn beyond the sidewalk. However, some states require that the landlord store the tenant’s possessions in a secure facility. Once all property belonging to the tenant has been removed, the tenant himself must depart or risk being arrested for trespassing.
Caution to Landlords
While the legal process of eviction may cost the landlord considerable time and expense, there is no other viable, legal alternative for removing a tenant from the rental property. The tenant is entitled to due process of law and the landlord is obligated to follow state statues for the eviction process. A self-help eviction is illegal and will result in costly penalties and consequences to a landlord.